Zillow Sends Totally Bullshit Legal Threat To McMansion Hell

from the censorious-thugs dept

There are few things I hate more than when tech platforms -- which have benefited from key rights provided to internet platforms and the public -- turn around and abuse the law to try to silence or kill off others. And the latest company to dive headfirst into this unfortunate pool of shame is Zillow, which is threatening to sue the person behind McMansionHell.com based on a number of different awful interpretations of the law that can be summed up as: "hey, you can't use our images to make fun of homes."

This threat against McMansion Hell is particularly dumb. On multiple levels. The threat letter offers up a bunch of theories for why McMansion Hell is illegal, none of which make any sense at all when you dig in. Zillow just looks like a particularly assholish, censorial thug.

McMansion Hell, if you didn't already know about it, is basically exactly what it says on the tin. It's a website that looks critically at some trends in home design. I've visited the site a few times in the past, but not in a while -- and because of the threat, the site is currently down. This is what you see as I write this:

But, before that, it looked something like this (via Google Cache):

I realize there's a lot there, but the site would take a bunch of images, of houses, sometimes adding annotations and captions and the go into great detail critiquing a trend, or style, or architectural or real estate idea. It was informative and funny. And, at least for the time being, it doesn't exist.

Zillow's legal theories here are... mostly of the crazypants variety. First, the letter says that McMansion Hell is violating Zillow's terms of service, because the terms of service forbid reproducing or modifying images on Zillow.

Zillow's Terms of Use (the "Terms") specifically prohibit reproducing, modifying, distributing, or otherwise creating derivative works from any portion of the Zillow Site. The Terms further prohibit reproduction of any underlying images from real estate listings on the Zillow Site, as well as any use of the Zillow Site that could harm Zillow or its suppliers.

You are in violation of the Terms, and admit to this Yourself in certain posts on Your Site, wherein You state that "[a]ll photographs in this post are from real estate aggregate Zillow.com..." and reference the fact that Your posts feature "[m]anipulated photos."

First off, Zillow cannot use its terms of service to wipe out fair use as a legal defense. The only remedy for Zillow is to stop the person behind McMansion Hell, Kate Wagner, from having an account on the site. But since many of the images are publicly available, she absolutely has a right to make non-infringing fair use reproductions and derivative works. This general threat that if you violate the terms that the company comes up with itself you've run into legal trouble is nonsensical (even though some try to make CFAA arguments about this -- but we'll get to that).

Next, Zillow's lawyer insists that this is not fair use. The argument here can basically be summed up as "No Fair Use Allowed."

In addition to violating the Terms, Your actions infringe on the rights of each copyright holder of the images. You state that the Images are used "for the purposes of education, satire, and parody consistent with 17 U.S.C. § 107," which appears to be a claim that Your use constitutes fair use. Courts weight four primary factors in determining whether use of a copyright work is fair use. When those factors are applied to Your use of the Images on Your Site, none support an argument that Your use is fair use.

That's it. Say there are four factors, mention none of them, then say that none of the factors apply. While it is true that merely saying that you're using the images for fair use purposes is not enough to shield you if you are infringing, here it seems to pretty clearly be fair use under all of the factors. The use is clearly transformative. Whereas Zillow is about selling houses, McMansion Hell is about providing commentary and criticism about real estate and residential architecture. That's a very different use, and showing images of actual homes seems perfectly key to that, and we have multiple cases that have said similar uses are fair use. On top of that, there's tremendous commentary and criticism to go along with the images, which makes it an even stronger fair use argument.

And, let's not forget that, as far as I know -- and as the letter more or less admits -- Zillow doesn't hold the copyright in these images. It's merely licensing them from the actual copyright holders, and thus it can't make any credible copyright threat against McMansion Hell, as it doesn't even hold the rights in question. What a joke.

Finally we get to the CFAA argument which, of the three arguments made, is the dumbest. But at least there's an actual legal issue there -- unlike the previous two:

Furthermore, Your activities may violate the federal Computer Fraud and Abuse Act, 18 U.S.C. § 1030, and state laws prohibiting fraud and interference with Zillow's business expectations and interests.

Of course, note the lack of any explanation for how this violates the CFAA. That should be a pretty strong statement that Zillow's lawyer knows there's no substance to this argument, but wants to make the threat letter sound as scary as possible (which worked). The only argument that the company could probably come up with is the claim that violating the terms is what violates the CFAA -- but those arguments have mostly (though not entirely) failed in court. Even when the argument has been accepted, I fail to see how the situations in those cases would apply here to a blog doing commentary.

In other words, all three of the supposed arguments against McMansion Hell are silly in the extreme. Zillow and its lawyer, Christopher Poole, (note: not moot) should feel bad. It appears that Poole (the lawyer one) just joined Zillow last month. Hopefully, this was the overeager new guy thinking he was doing something good, rather than shitting all over Zillow's brand as a supporter of a free and open internet.

Hopefully as this gets out, and people realize just how ridiculously censorial and obnoxious Zillow appears, the company will reconsider and apologize. This is not just bad behavior. This is attacking free speech on an open internet -- the same open internet that allowed Zillow to exist and thrive in the first place. The company should be ashamed.

GodZillow

Two Things....

There is so much badness here, let's just focus on the two main points:

1.) WHY, dear god WHY do companies allow young, inexperienced lawyers to send letters like this? Actually, to be fair to Mr. Poole, I have received many similar letters from OLD, inexperienced lawyers. I guess the main point is that if you do not have substantial experience dealing with issues exactly like this, then you are going to make an obvious fool of yourself. Don't. Do. That.

2.) I hope Mr. Masnick realizes that posting a copy of this letter without the author's permission is clearly WILLFUL copyright infringement (and, of course, because it was posted on a for-profit site, it also constitutes criminal copyright infringement). No, I don't actually believe this, but I'm guessing that could be the next argument we see from Zillow.

Re: Two Things....

Regarding #1, I would guess that a lot of lawyers try the initial legal threat letter regardless of the merit of their argument in hopes of scaring people who don't have lawyers on standby into complying.

Re: Two Things....

Is it the billionaires who want to rule the planet that artificially inflated home prices to more than 100% in the last decade and a half? I would like to know who has the authority and balls to rein in those prices.

Re: Two Things....

For 1.) I think it is because they can only get inexperienced lawyers - the law market is flooded with desperate unemployed lawyers. The established ones would tell them "It is fair use and suing them would be ethically wrong." - on the grounds that it would damage their reputation alone.

So Zillow was likely lawyer shopping to get one who would file their SLAPP suit.

Re: Two Things....

1 - Because billable time is billable.You represent your client and do what they want.Ethics & the law be damned, there is money to be made.They get paid no matter what happens.It's not like there is any oversight of these people.(Try and tell me different & I'll show you how long it took to get Hans and Steele disbarred)

They client demands action, trying to talk them off the ledge only nets you an hour or 2 and you get replaced. Send stupid letters that can scare the unwary & maybe get what the client wants... CHA-CHING!So what if the client gets a black eye that will take way more to fix that what you earned, you did what the client wanted.

Re: The use of the word may is particularly amusing

Zillow

I detest Zillow. FD, I'm a Real Estate Broker with a background in Appraisal. Those featured agents you see on Zillow? That's how Zillow makes money, they get the listings for no cost and charge agents a hefty fee to become featured ( I know one agent who was paying $700 a month, she's dropping it). I work mostly in W Sonoma County which has an incredibly diverse housing stock, "Zestimates" are frequently off by as much as 30%, sometimes more. In the last 5 years I have seen a total of one "Zestimate" that I agreed with, one. Many buyers and sellers give these "Zestimates" the same credibility as an appraisal done by a qualified professional. Take a look at their admitted error range...And Zillow is now getting into Brokerage with their "Instant Offers". If you look at that program carefully it is really a ploy to drive business to Zillow's "Premiere Agents", which will allow zillow to charge more for the privilege of becoming one of the anointed.Zillow is skirting the edges of being an appraisal firm and skirting the edge of being a brokerage. The Real Estate Biz sorta grew like topsy and it has plenty of problems that are structural, but Zillow's business model makes things worse.

McMansion Hell

I forgot to give a "Shout Out" to McMansion Hell". It's a wonderful site I have shared with many agents and clients. "Lovely Listing.Com" was also a lot of fun while it lasted and the archives are worth a visit.

I know don't feel the least bit bad about that crazy pants woman who was suing them for not thinking her house was worth what she thought it was. If this is the best legal mind they have, she'll actually win.

How to help?

Contact Zillow

It never hurts to remind a company that they are wrong. While they are being slammed in the press, it would most likely help to remind them that they have customers -- ones who can find other methods to pick houses/apartments/land

I couldn't find a direct "contact us" link, but after some (ahem) research, I found Zillow Research contact us.

My own experience with Zillow's legal dept

I have a minor experience myself that suggests Zillow's legal department is a little over-reaching sometimes.

Though I know their Zestimates are often wildly inaccurate [at least in my area] I've been using Zillow to get info on houses for years. When I set up my account using the email address "zillow@{MYDOMAINHERE}" because I run my own domain and that's what I often do when creating accounts on websites. Makes it easy to see who's selling their email address lists.

So at one point I flagged a property mine because it was listed as 'for sale' when it wasn't, and in response I get an email from Zillow's Legal department that said:

"... it recently came to our attention that you are using the trademark "Zillow" in your email address, zillow@{MYDOMAINHERE}. I need to ask you to stop using this email address.

When people use "Zillow" on Zillow Mortgage Marketplace or otherwise in the real estate or mortgage space, it causes two problems: it confuses consumers about an affiliation with Zillow and it violates Zillow's intellectual property rights. Zillow is a registered trademark, and we have a duty to police its use.

Consider this a polite request to change the email address, and not to use the Zillow name. Could you reply to confirm?

Since they were at least polite about it, I politely responded that I wasn't using it commercially, nor in the 'real estate or mortgage space" and that my use fell well within the auspices of fair use, and that I would continue to use the address for my account.

Thankfully I guess they decided I was right and never bothered me again.

Zillow may not even have a copyright interest in the pictures

Zillow's whole model is predicated on copyright infringement aka fair use. My understanding is that Zillow scraps MRIS and other Real Estate firms sites to show their listings and pictures. The pictures were not taken by a representative of Zillow but by the listing agents and real estate appraisers. In fact, except for the their wildly inaccurate Zestimate they do not provide any information about the listing that is their own.

Well, Zillow may really be within its rights here...

Hey,As an old copyright lawyer who has negotiated deals opposite Zillow and sued folks who have scraped real-estate listing data illegally from real-estate listing websites, I thought I might weigh in a bit. I'm not actually siding with Zillow here, but I think you're being unreasonably hard on the (possibly young) Zillow attorney.

In fact, Zillow IS legally able to restrict use of copyright-protected materials and even facts (which are not subject to copyright at all) on its website and apps through its terms of use or end-user license agreement (EULA), assuming that the EULA is really a contract (some certainly are not) and that it has language restricting these uses.

So it's not really a fair-use issue. I have fair use rights over images I find on the web, UNLESS I agree (through a EULA or otherwise) not to exercise those rights in return for something--like access to the website. The Seventh Circuit decided this in 1996 in ProCD v. Zeidenberg, and it has not seriously been challenged since.

The letter from Zillow's attorney emphasizes Zillow's rights under the EULA, and it does not claim copyright infringement from Zillow's perspective. Attorney Poole says only that "Your actions infringe the rights of each copyright holder of the Images." In fact, Zillow may be under contractual obligation with the folks who supply images to it to prevent those images being used elsewhere.

The CFAA argument is silly, but then, we teach lawyers (young and old) to throw in everything but the kitchen sink.

I like McMansion Hell, so I'd be sorry to see it come down permanently. But I'm not as ready to say its use of these photos is slam-dunk fair use as y'all are; and its operators are subject to the contract law surrounding EULAs just like the rest of us.

Re: Well, Zillow may really be within its rights here...

I'm not qualified to state whether Zillow has the legal right to send legal threats to young people who use images identified via Zillow for commentary, review, and parody.

I'm not qualified to state whether Zillow has the legal right to include, in that letter, obvious bullshit claims, meant to scare an unsophisticated recipient.

The EFFs involvement means their (very sophisticated) lawyers believe that Zillow may be in the wrong, and that the EFF is highly likely to win the case. The EFF doesn't put a lot of wood behind losers. However, that's as far as my legal analysis can go.

From a moral standpoint however:

1) It is morally abhorrent to claim a CFAA violation exists when none does. Your argument that lawyers should knowingly lie and misrepresent reality to scare unsophisticated opponents is, sadly, legal; however such dishonesty is immoral. Expedient dishonesty makes life easy for bad lawyers, but it should be socially discouraged, and those who encourage it should be shamed.

2) It would be morally repugnant if fine print could be used to waive core freedoms. If this is truly the current law, then it is good that the EFF is getting involved, because that is an un-American attack on freedom.

3) Zillow was experiencing no harm. It was pointlessly mean for Zillow destroy something that many people loved, for no particular reason, except that they thought maybe they had the legal right to destroy it.

In short, I'm not a lawyer, but I think you've neatly demonstrated that you and the Zillow lawyer are both immoral, untrustworthy assholes who will happily lie to get what you want; and who will claim that it its absolutely fine to lie to others and hurt other people for no reason

You're both terrible fucking people. And I appreciate you admitting so clearly that you support borderline legal intimidation tactics based purely on lies.

Zillow using malware/spyware to alter email sent to sellers as Daily Listing Report

Each time Zillow Group, Inc. sends a daily listing report email, it changes all prior sent daily listing reports still in one's email. This includes the prior Zestimate, the selling price of the home, etc. and does that for each and every report still in the inbox.

This cannot be done without their having sent a "trojan horse" type set of spyware/malware type program when they first communicated to the seller's email.

This non-permissive invasion of one's own email is a gross invasion or privacy, and must be stopped.